But Metro schools attorney says state not sharing costs

Sep. 10, 2013

Attorney General Robert Cooper / Jae S. Lee / File / The Tennessean

Written by

Joey Garrison

The Tennessean

In what’s now a case of dueling legal opinions, Tennessee Attorney General Robert Cooper says the state law that allows charter schools to operate here doesn’t impose financial burdens on local school districts in violation of the state constitution.

That’s an opposite conclusion to one reached by a Metro Nashville Public Schools attorney, who opined last month that the state’s failure to offset such costs is unconstitutional.

Its release, and distribution to school board members, set off a fierce debate over the cost of charters and hinted at the possibility of future litigation. It also prompted state House Speaker Beth Harwell, R-Nashville, a charter supporter who helped draft the decade-old law, and charter critic Rep. Mike Stewart, D-Nashville, to ask the state’s top attorney for his view.

Cooper, in an opinion issued Monday, defended the constitutionality of the 2002 law that set the funding mechanism for publicly financed, privately led charters.

“On its face, the Charter Schools Act does not directly or expressly require the expenditure of extra funds beyond what a [local school district] is already spending on education,” Cooper wrote in a six-page opinion.

A section of the Tennessee Constitution says that no law shall impose “increased expenditure requirements on cities or counties” unless the Tennessee General Assembly ensures that the state shares those costs.

Under the state’s charter school funding formula, the combined state and local per-pupil dollar amount follows students to their new schools. This equals about $9,200 per student in Nashville.

MNPS officials have argued the exit of students from traditional schools to charters hasn’t reduced the costs of maintaining schools they leave. Washington, D.C., attorney John Borkowski, hired by MNPS, said the state has failed to share in those costs, in his opinion.

In coming to a different conclusion, Cooper referenced the state’s Basic Education Program funding formula for all public schools. He said even in the event there are increased financial burdens to local districts, the BEP is “clearly more than sufficient to meet the level” required by the state constitution.

Whether the 2002 Charter Schools Act will eventually be reviewed by a court is unclear. A lawsuit would likely have to come from the Metro school board, or a school board of one of the state’s largest school districts.

“It’s pretty much what we expected,” school board member Will Pinkston said of the latest analysis. “Our lawyer issued an opinion. Their lawyer has issued a competing opinion.

“The only opinion that really matters is that of a judge and court of law. We’ll hope it doesn’t come to that.”

Pinkston took exception to Cooper’s BEP argument. Because Davidson County has the ability to generate greater tax revenue than smaller counties, it is historically among the lowest in per-pupil state allocations.

“The idea that the state is equitably sharing costs with this particular community is just inaccurate,” he said.

Metro school officials have raised alarm over the $61.3 million price tag expected to cover 22 charter schools that will operate by next year. The Budget and Finance Committee will revisit 2014-15 fiscal year budget talks today.